Newspaper publisher's opposition to dismissal of Epstein grand jury records suit

IN THE CIRCUIT COURT OF THE F1141 EENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶

CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-XXXX-MB¶

Publisher of THE PALM BEACH POST, Div.: AG¶

Plaintiff;¶

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida,¶

Defendants.¶

CO SA¶

PLAINTIFF’S OPPOSITION TO DEFENDANT CONBERG, AS STATE ATTORNEY OF PALM BEACH COUNTY, S MOTION TO DISMISS COUNT II OF THE FIRST COMPLAINT¶

Plaintiff CA Florida Holdings, LLC, The Palm Beach Post (“The Palm Beach Past) files this opposition to Defendan a nberg, State Attorney of Palm Beach County’s Motion to Dismiss Count II of The ch Post’s First Amended Complaint (“Motion”):¶

I. Y OF ARGUMENT¶

The State Attorney btieyes this action to be “frivolous.” Motion at 13. Far from it. This action is an opportunity institution of the State of Florida to exercise its authority, not to shield the sordid and but instead to further justice and restore the public’s confidence in the criminal justices,¶

The State Attorney pushes the general rule of grand jury secrecy too far. The State Attorney does so by arguing that Florida Statute § 905.27 does not allow The Palm Beach Post to seek relief under that statute, and even if it did, disclosure of the grand jury records in furtherance of justice cannot solely be made for purposes of informing the public. The State Attorney also appears to argue that the Court lacks the inherent authority and supervisory powers over the grand jury to order such disclosure. Motion at 12.1 Both arguments fail.¶

The Palm Beach Post has sufficiently pled the existence of its right to maintain an action under Section 905.27, as it does so for the benefit of the public and consistent with the general legislative scheme. The Palm Beach Post has the right to use the grand jury materials to inform the ublic, which is consistent with Section 905.27.¶

The Palm Beach Post has further stated a claim that either together W ependently of, l l Section 905.27, the Court has inherent authority to order the release e jury records. The exercise of such authority is regularly made for purposes as v • oting court efficiency to providing transparency for the judicial system.¶

The Palm Beach Post has therefore stated a c %Of oth Section 905.27 and pursuant to the Court’s inherent powers by which this Courtpia e release of the grand jury records sought in this action.¶

II. tt rl, BACKGROUND¶

The facts underlying th acti are largely uncontested. See Answer of State Attomey; Answer of Clerk. Indeed, t now largely a matter of public record as a result of the extensive legal proceedings g out of the various crimes of Epstein and his co-conspirators over the course of more than e. While the complete factual allegations are set forth in the First Amended Compla. mary of the relevant facts is set forth below.¶

A. First Epstein Sex Crimes Investigation, Indictment, and Plea Agreement: 2005 - 2008¶

The investigation into Epstein’s sex crimes began more than fifteen years ago, when a 14-¶

I The State Attorney also contends that it is “not in custody or control of the records sought.” Motion at 12. Whether the State Attorney possesses custody or control over the records is a disputed issue of fact that cannot be determined at the motion to dismiss stage.¶

year-old girl’s stepmother reported to police in the Town of Palm Beach, Florida, that Epstein and others who worked for him arranged for her to give Epstein a “massage.” Epstein required the girl to strip, exposed himself, and masturbated while touching her. The girl was paid $300. Epstein was 52 years old at the time. First Amended Complaint (“FAC”) ¶ 11.¶

Following this initial report in 2005, the Town of Palm Beach Police, and later in 2006, the FBI, investigated Epstein. Interviews under oath with five additional alleged victitseventeen witnesses revealed that the events described by the I4-year-old girl occurred, O rbingly similar details, with each of the other victims. Id.1 12.¶

eviden c5 trie (4following a Epstein’s home, showed that some of the girls involved w Ros) e age of 18. The police search of Epstein’s residence also found two hidden cam eri \n , h ughout the house, large numbers of nude photos of girls, including victims whom 8,4i had not interviewed in the course of their investigation. Id. 1113. Both the victim/witness interviews, as well as search of¶

In March 2006, a State gran testify. The proceeding was pos and Epstein’s prominent c Another grand jury <vriccony a evidence. Id.1 cheduled at which all of the victims were expected to wever, due to meetings between the State Attorney’s office defense lawyer and personal friend, Alan Dershowitz. Id.1 14. ed in April 2006, but canceled the day before it was to begin receiving¶

1’ On May I, 2006, Town of Palm Beach Police Chief Michael Reiter wrote a “personal and confidential” letter to then Palm Beach County State Attorney Barry Krischer, stating:

Police Chief Reiter’s Letter to the State Attorney¶

I must renew my prior observation to you that I continue to find your office’s treatment of [the Epstein] cases highly unusual. It is regrettable that I am forced to communicate in this manner, but my most recent telephone calls to you and those of the lead detective to your assigned attorneys have been unanswered and messages remain unretumed. After giving this¶

much thought and consideration, I must urge you to examine the unusual course that your office’s handling of this matter has taken and consider if good and sufficient reason exists to require your disqualification from the prosecution of these cases. (Emphasis supplied)¶

Id.¶ 16.¶

Chief Reiter’s letter to State Attorney Krischer enclosed the Town of Palm Beach Police Department’s probable cause affidavits charging Epstein and two of his assistants with multiple counts of unlawful sex acts with a minor and one count of sexual abuse, and requesl6i at either an arrest warrant be issued for Epstein or the State Attorney directly initiate tJ>uges against him, which would be public. Id.1 17.¶

2. The July 2006 State Grand Jury Presentatiq¶

Instead, State Attorney Krischer elected to refer theme d jury, which is mandatory for capital cases but rarely used for all other crimes. • o an official spokesperson, this was the first time that a sex crimes case was presentyd,‘S ” rtd jury in Palm Beach County. M.1 18.¶

In July 2006, after State Attorney victim, the grand jury returned an i no mention in the indictment of sche resented testimony and evidence from just one n a sole count of solicitation of prostitution. There is being a minor. Id.119. Another of Epstein’s victims was supposed to testify before l d jury, but did not. M. ¶ 20. No reasonable explanation has been provided as to wh e num rous other known victims were not presented as witnesses and crime victims to the convened in July 2006. M. ¶ 21. Nor has any reasonable explanation been provid hy State Attorney Krischer, who was initially eager to investigate and prosecute Epstein for his crimes, over time lost the desire to do so. M.¶

During the grand jury appearance of the single victim who testified, the State Attorney presented evidence that vilified the victim and attacked her credibility, including soliciting testimony regarding underage drinking and questionable personal behavior that was unrelated to the charges against Epstein. Id. ¶ 22. This information was initially brought to the attention of the State Attorney’s office by Epstein’s defense counsel. Id.¶

3. The FBI’s Investigation and Epstein’s Non-Prosecution Agreement With Federal Authorities¶

Following the deficient July 2006 indictment, and with Chief Reiter’s encouragement, the FBI began its own investigation of Epstein. Id. ¶ 23. Records unsealed in 2015 revealed that the FBI compiled reports on “34 confirmed minors” that were victims of Epstein’s sexual pred$tions. Based on evidence gathered by the FBI, a 53-page indictment was prepared by the U ’ tto y’s Office presented to a federal grand jury. Id. in June 2007. Id. ¶ 24. However, at the request of Epstein’s lawyers, t c ent was never¶

Instead, then U.S. Attorney for the Southern District of Alexander Acosta, negotiated a plea deal with Epstein’s team of lawyers to grant imm (along with four named coconspirators and any unnamed potential co-conspigal all federal criminal charges. Id. ¶ 25. Throughout the remainder of 2007 and through the fi half of 2008, Epstein’s lawyers and the U.S. Attorney continued negotiating the plea arrangement. Upon information and belief, Epstein’s lawyers insisted that (1) the victims not bpt of f(2) the deal be kept confidential and under seal, and (3) all grand jury subpoenas (includald.ahe that had already been issued for Epstein’s computers) be withdrawn. Id.1 26.¶

On June 2 Epstein pled guilty to State charges: one count of solicitation of prostitution and one co months in j followed by a year of community control or house arrest, and was adjudicated as a convicted sex offender required to register twice a year in Florida. Id. ¶ 27. itation of prostitution with a minor under the age of 18. He was sentenced to 18¶

The plea deal, called a non-prosecution agreement (“NPA”), allowed Epstein to receive immunity from federal sex-trafficking charges that could have sent him to prison for life. Public records reveal that former State Attorney Krischer communicated with then U.S. Attorney Acosta concerning the NPA’s negotiation with Epstein’s lawyers. Id.1 28.¶

Indeed, Epstein was not incarcerated in a Florida prison for the State crimes for which he was convicted. Instead, he was placed in a private wing of the Palm Beach County Stockade, where, after 3 12 months, he was allowed to leave the jail on “work release” for up to 12 hours a day, 6 days a week. His private driver provided his transportation to and from “work.” Id. ¶ 29. Epstein was also known to have violated the terms of his probation, but was not prosecuted. I g d. released five months early. Id. ¶ 30. was then¶

Following publicity exposing the extraordinary leniency of the ozens of civil suits were brought against Epstein, most of which Epstein’s lawyers f-court. Id.1 34.¶

4. The Crime Victims’ Rights Act Litiea¶

During the course of the Town of Palm Beac I , vestigations, Epstein retained private c investigators to follow, harass, and photograph ’ ti and their families, as well as Chief Reiter and the Town of Palm Beach detective w ’ Sves ( ta lRr…y ted the case against Epstein. Id. ¶ 36. Epstein’s victims were threatened against c t’ with law enforcement and told that they would be compensated only if they did no to with law enforcement. Id.1 37.¶

To add insult to inj tein’s victims only learned after the fact about his plea deal in State court and filed an petition to force federal prosecutors to comply with the Crime Victims’ Rights Act (1 3771, “CVRA”), which mandates certain rights for crime victims, including the right formed about plea agreements and the right to appear at sentencing. U.S. District Judge Kenneth A. Marra ruled in 2019 that federal prosecutors violated the CVRA by failing to notify Epstein’s victims before allowing him to plead guilty to only the two State offenses. Id. ¶ 32. The prosecution’s failure to keep the victims apprised, among other things, also contravenes the Florida Constitution, Article I, § 16(b) and Fla. Stat. § 960.001.k/1133.¶

B. Second Epstein Sex Crimes Investigation, Indictment, Suicide: 2019¶

On July 6, 2019, Epstein was arrested on federal sex trafficking charges. Id. ¶ 38.¶

The United States government’s prosecution of Epstein based on new allegations and charges stemmed, in part, from continued press investigations and reporting on the mishandling of the 2006 charges and the civil suits that followed. Id. ¶ 39.¶

In a July 8, 2019, letter to the federal district court by the U.S. Attorney for the 4iikhern District of New York, Epstein was described as “a serial sexual predator who preyed s of minor girls over a period of years.” The letter emphasized that “the Government h ems — grounded in past experience with this defendant — that if allowed to remain out bat defendant could attempt to pressure and intimidate witnesses and potential witnes t including victims and their families, and otherwise attempt to obstruct justice.” It lls” d the results of the FBI’s search of Epstein’s Manhattan townhouse: evidence of t g in the form of “hundreds—and perhaps thousands-of sexually suggestive phot phs f fully- or partially-nude females,” including underage females. In a locked safe, ac ‘scs were found with handwritten labels including the descriptions: “Young [Name] + area, “Misc nudes 1,” and “Girl pies nude.” Id. ¶ 40.¶

On July 8, 2019, pri ors with the Public Corruption Unit of the U.S. Attorney’s office for the Southern Di of N York charged Epstein with sex trafficking and conspiracy to traffic minors for se Th d jury indictment alleges that “dozens” of underage girls were brought into Epstein’ ns for sexual encounters. A few days later, owing to public outcry over the NPA with Epstein entered into by the U.S. Attorney for the Southern District of Florida, Alexander Acosta, who by then was serving as U.S. Secretary of Labor in the Trump administration, resigned from office. Id. ¶41.¶

On or about August 6, 2019, Florida Governor Ron DeSantis ordered a state criminal probe into the actions of the Palm Beach Sheriff and former State Attorney Krischer for their handling of the Epstein underage sex trafficking case. Id.1 43.¶

On August 20, 2019, Epstein was found dead, by apparent suicide, at the federal Metropolitan Correction Center in lower Manhattan where he was being held without bail. Id. 11142, 44.¶

C. The August 27. 2019. SDNY Henri ne: Enstein’s Victims Sneak¶

Following Epstein’s death, prosecutors sought to dismiss the indictment aga while maintaining that they would continue to investigate his co-conspirators. Id. CI•ted States Senior District Judge Richard M. Berman ordered a hearing on August 27, 201 to dismiss the indictment and allowed victims Id. ¶ 46. at the hearing. secutors’ decision¶

In the course of the hearing, more than two d pain, frustration, and sexual abuse at the hands Sic it4 delivered their personal stories of . Several victims spoke of violent rape by Epstein. Many more victims were present • e m but did not testify. Id. ¶ 47.¶

While some questioned the hind the court’s decision to give the victims voice after Epstein’s death, Judge Berman ted “a public hearing is [the] preferred vehicle of resolution,” emphasizing that “public Irs• are exactly what judges do. Hearings promote transparency and they provide the co with • ights and information which the court may not otherwise be aware of” Indeed, even ‘s efense lawyer noted at the hearing that the court “is the institution that most people rdence in, in these very troubled times.” Id. ¶ 48.¶

At the August 27th hearing, the girls, now women, spoke about their “exploitation and coercion,” and to the fact that many of them “were in very vulnerable situations and in extreme poverty, circumstances where [they] didn’t have anyone on [their] side, to speak on [their] behalf…” One victim lamented that “as a victim, [she] never got to see what the agreement was or why the special treatment got approved” in the Florida case years earlier. Another noted how “completely¶

different” the investigators leading to the 2019 federal indictment were from the prosecutors in the Florida case, both in their treatment of her and their investigation of her victimization by Epstein. Id. ¶ 49. A former federal judge in attendance at the August 27th hearing emphasized that “transparency is one of the overriding objectives in our criminal justice system.” Id. ¶ 50.¶

Nearly all of the victims expressed the conviction that the secrecy that shielded Epstein has caused them “irreparable harm” and that an opportunity to address his criminal wron s and those of the individuals who enabled his sexual racketeering, would allow for me measure of justice to be served after his death. Indeed, one victim stated: “Any e to protect Epstein’s name and legacy send a message to the victims that he wins at is untouchable.” Another victim expressed fear that this is a world “where there are q at )0 n power, a world where people can avoid justice if their pockets run deep enough.” /¶

In short, the “unusual” treatment Epstei ’ Florida in 2006 based on his wealth, social status, and connections severely eroded pub ‘s faith in the integrity and impartiality of the criminal justice system. Allowing T ach Post’s claims to proceed in this action would allow for public examination and and of the operation of the criminal justice system in Florida.¶

I pa,,p, III. LEGAL ARGUMENT¶

A. Le al Sta¶

Fla. R. 1.110(b) provides that a pleading that sets forth a claim for relief shall contain a short statement of the grounds of the ultimate facts showing that the pleader is entitled to relief. Fla. R. Civ. P. 1.110(g) permits a party to “set up in the same action as many claims or causes of action … as the pleader has, and claims for relief may be stated in the alternative.” The Rule further provides “[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both.” Fla. R. Civ. P. I .110(g).¶

Here, The Palm Beach Post brings two claims: one pursuant to Fla. Stat. § 905.27, and one for declaratory relief based on the principles set forth in Section 905.27 as well as constitutional principles of freedom of the press as protected by the Court’s inherent authority and supervisory powers. The State Attorney concedes that the declaratory relief claim is adequately plead. For the same reasons requiring that concession—and those set forth below—the Court should, respectfully, find that both claims have been sufficiently plead.¶

1. Grand Jury Secrecy Is Not Absolute CO S¶

Typically, grand jury proceedings are conducted and ma’ c • !’ ed secret. Fla. Stat. § 905.24. grand jury proceedings are already subject to public , as a testifying grand jury witness is But this secrecy has never been—and was never intended tute. First, as a practical matter, public s, free to disclose her grand jury testimony. In ic {sup}Blosr” .M, the United States Supreme Court, weighing the competing interests of grand • sec y and the First Amendment, held unconstitutional Section 905.27’s purported prohibit’ fitness revealing her own testimony. 494 U.S. 624, 626 (1990).2 The “secrecy” of grand Florida is thus qualified — not absolute — based on principles embodied in the First Ame¶

B. Relevant Legal Framework: Fla. Stat. ti 905.27¶

Second, S testimony of disclo 90 .27(1) specifically provides exceptions to grand jury secrecy: “the s examined before the grand jury or other evidence received by it” may be required by a court … for the purpose of: (a) Ascertaining whether it is consistent¶

{sup}2 The Florida Supreme Court has similarly confirmed that grand jury secrecy is not absolute and that any “harm to public officeholders” from disclosure will be the product of their own conduct, and not the consequence of an unrestrained body of misguided citizens.” Miami Herald Pub. Co. v. Marko, 352 So. 2d 518 (Fla. 1977). The decision in Marko emphasized that a grand jury’s important role in “expos[ing) official misconduct” precludes restricting access to its activities for the purpose of protecting “public officeholders.” Id. (“[t]he benefits to be derived from this extraordinary exercise in citizen participation [in the grand jury] would be severely limited if the fruits of that activity wcrc not available to the public on whose behalf it is undertaken. Implicit in the power of the grand jury to investigate and expose official misconduct is the right of the people to be informed of its findings.”).¶

with the testimony given by the witness before the court; (b) Determining whether the witness is guilty of perjury; or (c) Furthering justice.” Fla. Stat. § 905.27(1Xa)-(c). The Florida legislature therefore clearly intended to empower a court to order the disclosure of grand jury proceedings to, among other things, further justice, as this Court should do here.¶

Subsequent to such disclosure, The Palm Beach Post is not, as the State Attorney argues, constrained by the statute from using the materials for public disclosure—nor coup under the First Amendment.; Motion at 13. The State Attorney argues that “grand j o y `can only be used in the defense or prosecution of the civil or criminal case and for n t se whatsoever’…” Motion at 12-13. But that limitation only applies “[w]hen such disc tI; ) re rdered by a court pursuant to subsection (1)for use in a civil case.” Fla. Stat. § 905.27 t e y added). Here, The Palm Beach Post is not asking the Court to order the disclosure i d records “for use in a civil case;” rather, it seeks disclosure for the express r th in Section 905.27(1XO—i.e., to further justice by allowing the public, through th 7S rts IThe Palm Beach Post, access to this information.¶

2. The Pahn Reach Landing Under Section 905.27¶

The Palm Beach Post ht to maintain this private right of action because the furtherance of justice, an e egislative exception to grand jury secrecy, is intended for the public benefit, and The Be ch Post seeks access on behalf of the public it serves. Fla. Stat. § 905.27(IXc) It is rt er mandated in Fla. Stat. § 905.27 that the legislature intended for a court to be the ake the determination of disclosure. Fla. Stat. § 905.27(1). In other words, the legislature granted the courts the power to consider and determine the propriety and scope of grand¶

{sup}3 In this regard, the State Attorney’s interpretation of Section 905.27 would render the statute a prior restraint, “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Swan, 427 U.S. 539, 559 (1976) (noting a “deeply-seated American hostility to prior restraints”). To the extent redactions to the grand jury materials may be required to protect the privacy of unnamed victims or third parties, the Court of coursc may require such redactions prior to ordering disclosure of the records.¶

jury secrecy.¶

The Supreme Court of the United States has “recognized that the invocation of grand jury interests is not “‘some talisman that dissolves all constitutional protections.” Butterworth, 494 U.S. at 630-31 (quoting U.S. v. Dionisio, 410 U.S. 1, 11 (1973)); see also Landmark Communications, at 838 (balancing state’s interest in preserving confidentiality of judicial review proceedings against rights of newspaper reporting on such proceedings).¶

As explained in the FAC (¶y 56-59), the Supreme Court has further ( ecocized that the press has a constitutional right of access to criminal proceedings, see, e.g., tc n ncnVewspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980), including pre-trial crimina ,4 ;44 eeaRfp. v. Graddick, 696 F.2d 796 (11th Cir. 1983). ‘Indeed, “the integrity of th is rocess, which public scrutiny is supposed to safeguard, is just as much at issue in prpCre f this kind [pre- and post-trial] as at trial.” Id. at 801; see also Miami Herald Publ. ?S ri. , 426 So. 2d 1, 6-7 (Fla. 1982) (identifying the news media as a “public surrogate” in Att…, ers cerning the closure of judicial proceedings). The press also has a First Amendment ’ cpe tt receiving information from willing speakers. See Va. State Bd. of Pharmacy v. Va. Ci ens nsumer Council, Inc., 425 U.S. 748, 756-57 (1976) (“Where a speaker exists . .. the p afforded [by the First Amendment] is to the communication, to its source and to its h.”); Pittman v. 267 F.3d 1269, 1283 n.12 (11th Cir. 2001) (“The Supreme Cou gnized that the First Amendment offers protection to both speakers and those wishing l re speech.”); see also Stephens v. Cty. of Albemarle, VA, 524 F.3d 485, 492 (4th Cir. 2008) (providing that a plaintiff has “standing to assert a right to receive speech” by “show[ing] that there exists a speaker willing to convey the information to her”).¶

Because of the unique role performed by the press as a “public surrogate” (=, 426 So. 2d at 6-7) in protecting the right of access and its interest in reporting information about criminal proceedings, news organizations “presumptively have a right to access judicial records,” Comm ‘r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1166 (11th Cir. 2019), and “standing to question the validity of an order restricting publicity because its ability to gather news is directly impaired or curtailed.” M, 426 So. 2d at 4; see also Carlson v. United States, 837 F.3d 753, 757- 58 (7th Cir. 2016) (“[a]s a member of the public, [the Reporters Committee] has standing to assert [its] claim” to grand jury materials because such materials are “public records to which t c may seek ACt” access, even if that effort is ultimately unsuccessful”).¶

Here, the continued denial of access to information sought by Beach Post on behalf of its journalists and the public “unquestionably constitutes irre V 1 ury.” Gainesville Woman Care, LLC v. State of Florida, 210 So. 3d 1243, 1263 (Fla c ) , e also Zerilli v.M, 656 F.2d 705, 711 (D.C. Cir. 1981) (noting that “the press’ /S ittis ‘43 v as a vital source of information is weakened whenever the ability of journalists to ( s Ars h , e , is impaired,” as it is by Attorney General’s refusal to disclose unredacted report 119 and lyin grand jury materials).¶

The Palm Beach Post does d that Section 905.27 makes no express provision for a civil suit or civil liability, but tha ‘s jus e start of the inquiry. In determining whether a private right of action lies in a statute, n Florida consider: (1) whether the plaintiff is one of the class for whose special ben the st to was enacted; (2) whether there is any indication, either explicit or implicit, of a I e mtent to create or deny such a remedy; and (3) whether judicial implication is consiste e underlying purposes of the legislative scheme. Fischer v. Metcalf, 543 So. 2d 785 (Fla. 3d DCA 1989) (adding the second and third factors; previously, courts considered solely the “class benefited” factor). “Courts must strike a balance; neither `fashioning a per se rule of construction that implicit in every penal statute is a concomitant civil remedy,’ nor relinquishing the task of judicial implication in the face of legislative faltering or uncertainty.” Fischer, 543 So. 2d at 789 (quoting¶

Roger Rankin Enters., Inc. v.M, 433 So. 2d 1248, 1250 (Fla. 3d DCA 1983); v. Piezo Tech. and Prof! Adm’rs, 427 So. 2d 182, 184 (Fla. 1983) (Supreme Court of Florida implied a statutory cause of action for the wrongful discharge of employees who sought workers’ compensation benefits).¶

Consideration of these three factors weighs in favor of finding a private right of action in Section 905.27. First, the statutory exception to grand jury secrecy embodied in Sec ‘on 905.27 — “furthering justice” — is intended to benefit the public at large, not just those prey arty to the grand jury proceeding at issue. Because, as set forth above, members s, are “public surrogate[s]” (=, 426 So. 2d at 6-7) and play a vital role in gathe g 1 ation and reporting on the criminal justice system, The Palm Beach Post is “one of clan or whose especial benefit the statute was enacted”—namely, the public itself. See M RQa . aide, 561 So. 2d 1319 (Fla. 4th DCA 1990) (finding plaintiffs “had the right to mai S {sup}n:, to cause of action as the persons the legislature intended to protect by the enactment e evant statute).¶

Second, there is a dearth of legisle tisto surrounding Section 905.27, and The Palm Beach Post was unable to locate any do private right of action. There is also no intent—express or disclosure of gran vessel. See M case of ring any legislative intent regarding the possibility of a lit statement in favor of such a right, but to be clear, there is ise—prohibiting a private right of action, in the absence of which als to “further justice” under the statute would be rendered a hollow 61 So. 2d at 1320 (“The absence of express provision for civil liability in the f a statute does not negative the existence of a legislative intent that the statute shall effect private rights.”) (quoting Florida Statutes, Section 475.482 (1989)).¶

In such circumstances, consideration of the third factor — whether judicial implication is consistent with the underlying purposes of the legislative scheme — is instructive. When scrutinizing the history of legislation to determine legislative intent, it is appropriate to consider acts passed at¶

subsequent sessions. Fischer, 543 So. 2d at 790. In 1994, at the same time Section 905.27 was reenacted to expressly provide for the three exceptions to grand jury secrecy, including furthering justice, the Florida legislature also reenacted Fla. Stat. § 905.395, which concerns the secrecy of statewide grand juries. 1994 Fla. ALS 285, 1994 Fla. Laws ch. 285, 1994 Fla. SB 114; Fla. Stat. § 905.395. Like Section 905.27, Section 905.395 has a general prohibition on disclosure of grand jury proceedings, absent a court order. Fla. Stat. § 905.395. Tellingly, however, Sectio 95 does not provide any specific exceptions to nondisclosure, including the fiwtheran i e. Through the intentional omission of these exceptions, including the fundamental ” tice” exception, it can be understood that the legislature did not intend for court-o d osure of statewide grand jury records to further justice, and did not anticipate suc r lo would benefit the public. By contrast, the legislature’s decision to include the ca ” ering justice” exception in Section 905.27 reflects an intent to protect and inform e b the ultimate benefactors of the criminal justice system—by providing a means of a m se rare situations where the integrity of the grand jury process has been called into s ion. Accordingly, implying a private right of action is consistent with the purposes and e legislative scheme in Chapter 900 of the Florida Statutes.¶

C. This Court has i t Power to Release Grand Jury Records in Order to Further Justice and %Indica e Confidence in the Judicial Process¶

As set f inNipFAC (VI 60-64), even in the absence of the statutory framework in Section 905.27, di s appropriate pursuant to this Court’s inherent authority over grand jury proceedings cause of the exceptional public interest in this case and the compelling circumstances supporting transparency rather than continued secrecy.¶

1. The Grand Jury is Under the Court’s Sunervision and Jurisdiction¶

It is well-settled that the grand jury is “‘a judicial proceeding in a court of justice…an appendage or adjunct to the circuit court.”’ In re Grand Jut),Investigation, 287 So. 2d 43 (Fla. 1973) (quoting Craft v. State, 42 Fla. 567, 29 So. 418 (1900)). Indeed, it is the court that gives the grand jury its initial charge and advises the grand jury about its legal duties. Fla. Stat. § 905.18.¶

“It has long been understood that Iciertain implied powers must necessarily result to our Courts of justice from the nature of their institution,’ powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others." v. NASCa nc., 501 U.S. 32, 43 (1991). "There can be no question of the inherent power of a court to prot and hence society, as an instrument of justice.”’ In re Osborn, 376 F.2d 808, 810 (6th •¶

Thus, in a variety of contexts, it has been held that “courts hav t power to protect the integrity of the judicial process from perversion and abuse.” v. . - chine v. Valchine, 793 So. 2d 1094, 1099-1100 (Fla. 4th DCA 2001); Attwood v. t e , 661 So. 2d 1216 (Fla. 1995) (invoking court’s inherent authority to prevent “abus’ tic ’ m filing additional cases to prevent S “S in interference with orderly process of judicial ); Tramel v. Bass, 672 So. 2d 78 (Fla. 1st DCA 1996) (invoking court’s inherent a c t trike pleadings to sanction fraud perpetrated on the court).¶

The Florida Supreme Co has 6ted that it is “of vital importance to maintain the dignity and the integrity of both the and the presiding judge.” State v. Clemmons, 150 So. 2d 231, 233- 34 (Fla. 1963).4 states such as Florida, where the grand jury is preserved, it is an important appendage of a co which impanels it…[and] it should not be forgotten that the judge of that court is equal tent and he is generally charged with the supervision of the grand jury’s activities…” Id. “The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government.” - Yulee v. Fla. Bar, 575 U.S. 433, 445 (2015). Courts do not command armies and have “no influence over either the sword or the purse[.]” Id. (citing The Federalist No. 78,¶

{sup}4 State v. Clemons was superseded by statute. See Kelb, v. Sturgis, 453 So. 2d 1179 (Fla. 5th DCA 1984).¶

p. 465 (C. Rossiter ed. 1961) (A. )). “The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions.” Id.; see also In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1269-70 (11th Cir. 1984) (upholding the exercise of the court’s inherent power to release grand jury records to further “a matter of great societal importance” that affected “the public confidence in the judiciary”). “The perception of a viable healthy judiciary is of critical importance to our system of justice.” Id. at 1271. This ’ ” is of equal importance with respect to state courts, which are invested with primary itsTes ty for overseeing the investigation and prosecution of crimes.¶

The Supreme Court of the United States, while acknowled • ) the ues in grand jury secrecy, has long authorized the disclosure of grand jury records w ; t eed for transparency outweighs any remaining interest in secrecy. Douglas Oil Co. o i Sdfi(? c a v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979). Courts around the country ha lllic, suit. See, e.g.. In re Petition of Nat? Sec. Archive, No. 08 CIV. 6599, 2008 WL 898 (S. sooN .Y. Aug. 26, 2008) (release of grand jury records concerning the indictment of Julius e osenberg); In re Petition of Nat? Sec. Archive, 104 F. Supp. 3d 625 (S.D.N.Y. 2015) me n re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (release of President Nixo d jury deposition testimony in connection with the third Watergate grand jury); In re ckets Related to the Indep. Counsel’s 1998 Investigation of President Clinton, 308 d 314 (D.D.C. 2018) (release of records related to independent counsel’s investig resident Clinton). Most recently, the D.C. Circuit ordered the Trump administration to provide the House Judiciary Committee redacted portions of grand jury materials from former special counsel Robert Mueller’s probe into Russian election interference. In Re: Application of the Committee on the Judiciary, U.S. House of Representatives, For an Order Authorizing the Release of Certain Grand Jwy Materials, Committee on the Judiciary, United States House of Representatives¶

v. U.S. Department ofJustice, No. 19-5288 (D.C. Cir. March 20, 2020). There is no evidence that the disclosures resulting from these cases have adversely affected the grand jury process. On the other hand, there is no doubt that the release of these materials has contributed greatly to the historical record of significant events in our country’s history, as well as exposing failures in our justice system.¶

2. This Court has inherent Power to Release Grand Jury Records in Order to Further Justice and Vindicate Confidence in the Judicial Process¶

Courts have identified nine “non-exhaustive” factors that a court atimcOStider when determining whether their inherent authority should be exercised to ord e of grand jury documents. These factors include:¶

(i) the identity of the party seeking disclosure; (ii) w proceeding or the government opposes the disclosu the particular case; (iv) what specific informatio ago the grand jury proceedings took place; (vi jury proceedings and that of their famili either permissibly or impermissibly witnesses to the grand jury proceedin (ix) the additional need for maintayri e defendant to the grand jury y disclosure is being sought in ought for disclosure; (v) how long status of the principals of the grand th extent to which the desired material previously made public; (viii) whether t be affected by disclosure are still alive; and cy in the particular case in question.¶

Kutler, at 47-48 (quoting In re Petit’ g, 131 F.3d 99,106).5¶

The vast majority of the weigh in favor of disclosure in this case. First, the party seeking disclosure does so uant to its First Amendment right to receive information in order to inform the public.St defendant to disclos P rmacy Bd., 425 U.S. at 756-57; Pittman, 267 F.3d at 1283. Second, the d’jury proceeding is deceased, although the government is opposed to the alm Beach Post respectfully submits that the government’s opposition should be¶

While it is largely federal courts that have applied these nine factors, (1) there can be no dispute that Florida courts arc endowed with inherent authority like their federal counterparts, see supra at 15-16; and (2) notably, federal courts consider these factors when the enumerated exceptions to grand jury secrecy set forth in Federal Rule of Criminal Procedure 6(eX3)(E) do not appear to apply. See, e.g., In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1268 ( I 1th Cir. 1984) (“it has been authoritatively said that [Rule 6(e)] is not the true source of the district court’s power with respect to grand jury records but rather is a codification of standards pertaining to the scope of the power entrusted to the discretion of the district court”). Thus, to the extent the Court does not find that it is authorized by Fla. Stat. § 905.27 to order disclosure of the Epstcin grand jury materials, its inherent authority provides “ample[]” (id.) grounds for such disclosure.¶

given little weight where, as here, the disclosure of records is sought to uncover the alleged misconduct of a prior State Attorney (as opposed to, for example, witness perjury). Third, disclosure is being sought—based on information learned by The Palm Beach Post from (1) a series of Florida Public Records Law requests, (2) law enforcement sources with direct knowledge of the grand jury evidence and proceedings, (3) judicial documents obtained from independent but related court proceedings, and (4) documents otherwise available in the public record—to inform the public as o tter the then State Attorney for Palm Beach County presented truncated evidence of Epste al wrongdoing to the 2006 grand jury in a manner that precluded Epstein’s indic e serious crimes he committed, including sex trafficking and sexual assault. Fourt e rds being sought are the testimony, minutes, and other evidence presented in 2006 t appear to have been whitewashed so that Epstein wo there was ample evidence. Fifth, the grand jury each County grand jury, which charged with serious crimes of which took place nearly fifteen years ago. Sixth, the current status of the principals of the % j ” croceedings are unknown. Seventh, because much of the requested information has mistreatment by and misgivin surrounding Epstein and hi this factor weighs unknown—in t the public domain through victims protesting their ing prosecutors (both state and federal), other lawsuits pirators, and public records requests and extensive news reporting, f MI disclosure. Eighth, the status of the witnesses who appeared is e Palm Beach Post’s request is made, in part, to learn who the witnesses were that the rney did decide to call. 6 Finally, The Palm Beach Post submits that with the death of the defendant, the widely-known and litigated acts of his co-conspirators, the length of time that has passed, and the widely reported nature of this miscarriage of justice, there is no additional need for maintaining secrecy. See U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940) (“[A]fter the grand¶

{sup}6 With rcspcct to the sixth and eighth factors, an in camera review by this Court, followed by appropriate redactions, would remedy any potential harm to innocent parties.¶

jury’s functions are ended, disclosure is wholly proper where the ends of justice require it.”).¶

Courts have long realized that a transparent criminal justice system, affords “significant community therapeutic value.” Richmond Newspapers v. Virginia, 448 U.S. at 570-71. “[T]he open processes ofjustice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.” Id. at 571. “The crucial prophylactic aspects of the ad inistration ofjustice cannot function in the dark; no community catharsis can occur if justice i in a corner [or] in any covert manner.” Id. eS’¶

The Palm Beach Post has accordingly stated a claim pursuant to s inherent authority and supervisory powers, which allow the Court to take appropri it cessary action to preserve and promote the integrity of the justice system. The citizens a 7 each County and throughout the State of Florida are entitled to nothing less in this cas onal importance and public interest.¶

IV. Cctk , ION¶

Pursuant to Fla. Stat. § 905.27 • ‘s rt’s inherent supervisory authority, The Palm Beach Post has sufficiently pleaded • .¶

Dated: March 13, 2020 Respectfully submitted,¶

GREENBERG TRAURIG, P.A.¶

Attorneys for CA Florida Holdings, LLC, Publisher of The Palm Beach Post¶

Stephen A. Mendelsohn, Esq. 5100 Town Center Circle, Suite 400 Boca Raton, Florida 33486 Telephone: (561) 955-7629 Facsimile: (561) 338-7099¶

By: Is/ Stephen A. Mendelsohn¶

STEPHEN A. MENDELSOHN Florida Bar No. 849324 mendelsohns@gtlaw.com hasenhegtlaw.com FLService@gtlaw.com ¶

By: Is/ Michael J Grvgiel¶

ACTIVE 492958.871M¶

MICHAEL J GRYGIEL¶

(Admitted Pro Hac Vice)¶

54 State St., 6th Floor¶

Albany, New York 12207¶

Telephone: (518) 689-1400¶

Facsimile: (518) 689-1499¶

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By: /s/ Nina D. Bovaiian¶

NINA D. BOYAJIAN¶